This is a document preview
TAX ALLOCATION AGREEMENT
THIS AGREEMENT is entered into as March 1, 2006, by and between Ener1 Group, Inc., a Florida corporation (“E1G”) and Ener1, Inc. and its subsidiaries (“Ener1”), a Florida corporation.
WHEREAS, E1G is the common parent corporation of an affiliated group of corporations (the “E1G Affiliated Group”) within the meaning of section 1504(a) of the Internal Revenue Code of 1986, as amended (the “Code”), and Ener1 is a corporation more than 80% owned by E1G and therefore a member of the E1G Affiliated Group; and
WHEREAS, E1G and Ener1 deem it appropriate to define the method by which the federal income tax, including for all purposes of this Agreement, the alternative minimum tax, and certain state and local tax liabilities of the E1G Affiliated Group shall be allocated between the parties and the manner in which such allocated liability shall be paid.
NOW, THEREFORE, in consideration of the premises and of the mutual premises and covenants hereinafter set forth, the parties hereto agree as follows:
1. Definitions. The following terms as used in this Agreement shall have the meanings set forth below:
(a) “Additional Amount” shall mean the amount determined under Section 3 hereof.
(b) “Consolidated Return” shall mean a consolidated federal income tax return filed pursuant to section 1501 of the Code.
(c) “Consolidated Tax Liability” shall mean the consolidated federal income tax liability, including for all purposes of this Agreement, alternative minimum tax liability, of the E1G Affiliated Group for any taxable year for which the E1G Affiliated Group files a Consolidated Return.
(d) “IRS” shall mean the Internal Revenue Service.
(e) “Member” shall mean each includible member of the E1G Affiliated Group.
(f) “E1G Affiliated Group” shall mean the affiliated group of corporations within the meaning of section 1504(a) of the Code of which E1G is the common parent.
(g) “Regulations” shall mean the Treasury regulations as in effect from time to time.
(h) “Separate Return Tax Liability” shall mean the federal income tax liability, including for all purposes of this Agreement, alternative minimum tax liability, of a Member computed as if it had filed a separate federal income tax return for the applicable taxable year with the modifications set forth in section 1.1552-1(a)(2)(ii) of the Regulations.
(i) “Separate Tax Liability” shall mean the amount owed by a Member under Section 2(a) hereof.
(j) “Tax Sharing Receivable” shall mean the amount owned to a Member pursuant to Section 2(a) hereof.
2. Separate Tax Liability.
(a) If a Consolidated Return is filed by the E1G Affiliated Group for any taxable year, the Separate Tax Liability of each Member for such taxable year shall, if a positive number, be the sum of (i) the amount determined for such Member pursuant to paragraph (b) hereof, plus or minus, as the case may be, (ii) any increase or reduction in the Member's tentative Separate Tax Liability required by paragraph (c) hereof. To the extent an allocation to a Member under clause (ii) of paragraph (c) hereof reduces a Member's tentative Separate Tax Liability to an amount less than zero, such negative amount shall be referred to herein as a “Tax Sharing Receivable.”
(b) Each Member's tentative Separate Tax Liability shall be an amount equal to that portion of the Consolidated Tax Liability for such taxable year that the Member's Separate Return Tax Liability for such taxable year bears to the sum of the Separate Return Tax Liabilities of all Members for such taxable year; provided, however, that such amount shall not exceed the Consolidated Tax Liability for such taxable year.
(c) Adjustments for Additional Amount. If